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College Stars Sue Over Likenesses in Video Games

The players in EA Sports NBA Live game get a share of its licensing fees, but the stars of NCAA March Madness do not.Credit
Lucas Jackson/Reuters

One of the best parts about being the quarterback for Arizona State was the thrill that Sam Keller got whenever he played NCAA Football, the popular video game from Electronic Arts.

Although Keller’s name did not appear in the game, there was little doubt that he was the inspiration for the Arizona State quarterback in its 2005 edition. The virtual player shared Keller’s jersey number, 9, as well as his height, weight, skin tone, hair color and home state. The virtual quarterback even had the same playing style, as a pocket passer. “That was what made it so cool,” said Keller, who transferred to Nebraska in 2006. “It was so blatant.”

Keller has since come to view his appearance in the video game in a different light: as exploitation. He filed a class-action lawsuit this spring against Electronic Arts and the National Collegiate Athletic Association, arguing that they illegally profit from the images of college football and basketball players. Ryan Hart, a former Rutgers quarterback, filed a similar lawsuit against Electronic Arts earlier this week in a New Jersey state court.

“We signed a paper at the beginning of college saying we couldn’t benefit from our name,” said Keller, who is now 24 and living in Scottsdale, Ariz. “So why was the N.C.A.A. turning a blind eye to this and allowing EA Sports to take our likenesses and make big bucks off it?”

The N.C.A.A. has long enforced strict rules barring its athletes from cashing in on their celebrity status at the same time that it earned millions of dollars through licensing deals, like those for jerseys, that some say did just that. Now athletes are challenging in court for the right to control the use of their images.

Other athletes have successfully sued over the right to profit from their likenesses, including a group of retired N.F.L. players who sued their union for allowing Electronic Arts to use their identities in Madden NFL without compensating them. In November, a jury awarded more than 2,000 retired players $28.1 million. The award was reduced to $26.25 million in a settlement.

The case of the college athletes is more serious, said Richard Karcher, the director of the Center for Law and Sports at the Florida Coastal School of Law. “It’s more egregious when third parties are profiting off of amateur athletes,” he said.

Legal experts said it would be difficult to quantify how much the likenesses of college players are worth, but by comparison, the N.F.L. players union earned more than $35 million in royalties from Electronic Arts in 2008. Robert Carey, Keller’s lawyer, said college athletes could be compensated in ways that do not violate their amateur status, such as by placing the royalty payments in a trust or paying for graduate education.

Photo

Sam Keller said he used to enjoy playing himself in EA Sports NCAA Football 2005.Credit
Nati Harnik/Associated Press

In a statement, the N.C.A.A. said the complaints were without merit and that the video games did not violate N.C.A.A. rules. A spokesman for Electronic Arts declined to comment, citing the pending lawsuits. The lawsuits come as the N.C.A.A. is considering loosening restrictions on the marketing of individual players. Christine Plonsky, director of women’s athletics at the University of Texas, argued that there was no harm in showcasing the talents of individual athletes, within limits. She and her colleagues “don’t view uses of their imagery as exploitative, but mere evidence of participation,” she said in an e-mail message.

But Amy Perko, executive director of the Knight Commission on Intercollegiate Athletics, an independent watchdog group, said profiting from the use of athletes’ images veered too far from amateurism. “If that line is erased, it puts the whole enterprise on the slippery slope toward further professionalization,” she said.

Perko and others see the video games as the most extreme examples of the commercialization of individual athletes. The N.C.A.A. and its member universities have licensing agreements that allow Electronic Arts to publish three college-themed video games: NCAA Football, NCAA Basketball and NCAA March Madness.

Unlike video games for professional sports leagues, the games for N.C.A.A. sports do not use players’ names. But even casual fans of college sports would recognize the athletes depicted in them. In NCAA Football 2009, the quarterback for the University of Florida is left-handed, stands 6 feet 3 inches, and wears No. 15, just like the Gators’ Tim Tebow, one of college football’s biggest stars. While the electronic player’s hometown is different — Tebow is from Jacksonville, not Brandon — each is from Florida.

Fans can download player rosters from other users via an online feature set up by Electronic Arts. Once the names are downloaded, they automatically appear on the back of jerseys. Several legal experts said that Keller and Hart made a persuasive case that Electronic Arts violated their right of publicity, which prevents the commercial use of someone’s likeness without that person’s consent. Celebrities have prevailed in similar cases, including one in which the game show hostess Vanna White sued Samsung for using a robot that resembled her in an advertisement.

The N.C.A.A. would not disclose its earnings from video game royalties. But they are a significant source of income for the association and the universities, said Martin Brochstein, senior vice president of the International Licensing Industry Merchandisers’ Association, a trade group. A 2008 survey conducted by his group found that video-game royalties represented the second-largest category in earnings from collegiate licensing deals, behind apparel.

“Video games have been one of the biggest categories for some time now,” he said.

Plonsky and others contend that the Internet and mobile technology demand new types of information, and that colleges should be allowed to do more to promote marquee players. Plonsky served on an N.C.A.A. committee that looked into relaxing the rules that she said would only be an extension of the existing reality, in which colleges collect fees from sponsors and television networks that showcase the performances of athletes. “In no way was a student-athlete compromised,” she said.

Under the proposed changes, commercial sponsors would be able to highlight an individual player but only by using game footage and only if the player was not portrayed as directly endorsing a product. Although the changes would require students to give their consent, they would not be paid.

One of the twists in the debate over video games is that the very players who are supposedly the victims are some of the games’ biggest fans. Jason Kelce, an offensive guard for the University of Cincinnati, said he agreed with the spirit of Keller and Hart’s lawsuits. “I don’t think it’s fair for college athletes over all,” he said.

Still, Kelce said he and his teammates were counting the days until July 14, when Electronic Arts will release the latest version of NCAA Football. “We end up playing it nonstop for like four months,” he said.

A version of this article appears in print on , on page A1 of the New York edition with the headline: College Stars See Themselves in Video Games, and Pause to Sue. Order Reprints|Today's Paper|Subscribe